ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 11-313
DATE: 2012/07/05

BETWEEN:

BEVERLY JEAN PYKE
Plaintiff

– and –

MOHAWK COUNCIL OF AKWESASNE, ANY AGENT OR PERSON ACTING UNDER THEIR INSTRUCTIONS OR ON THEIR BEHALF, GRAND CHIEF MICHAEL MITCHELL, LEONA DELORMIER, SHEREE BONAPARTE, AND JERRY SWAMP
Defendants

Terry G. Mazerolle, for the Plaintiff
Patrick A. Thompson, for the Defendants

Justice Pelletier

Reasons for Judgment on a Motion to Strike Out Portions of a Statement of Claim

[ 1 ] On March 2009, Beverly Pyke bought a property on the Akwesasne Reserve from William Cook. The sale was conducted through a power of attorney which Mr. Cook had granted to Andre Sabourin. Days later, the transfer was stopped and Ms. Pyke was notified. The power of attorney had been cancelled sometime after the transaction but before the registration. The property was subsequently sold to Tobias Cook. After several months of inquiries, the title was registered in Ms. Pyke’s name, but not before the property had undergone renovations by Mr. Cook. The property no longer suited Ms. Pyke’s needs. The Akwesasne Police had been asked to intervene, either in an investigative or mediation role, however chose to remain uninvolved in the land dispute.

[ 2 ] Ms. Pyke sued the Mohawk Council of Akwesasne and various employees and police officers for what her statement of claim refers to an “abuse of position and negligence in job performance.”

[ 3 ] The Defendants bring this motion to have the pleadings struck as disclosing no cause of action and otherwise not complying with the rules concerning the form and contents of pleadings in civil cases.

[ 4 ] The matter has been before the court for 10 months since the motion was filed. When the motion was first heard, the Plaintiff agreed to strike all but the Mohawk Council and four individuals as named defendants, essentially deleting 17 of the original 21 named individuals from the suit.

[ 5 ] The motion was then adjourned to be argued on January 4 th , 2012. Due to counsel’s sudden and unforeseen unavailability, the matter was adjourned to February 24 th , 2012. The Defendants made their arguments. Ms. Pyke, unrepresented throughout, was given an opportunity to respond in writing. An extension was granted until mid spring. Eventually, the Plaintiff hired counsel and a factum in response to the present motion was delivered May 10 th , 2012. The Defendants were then granted until the end of June to respond to the Plaintiff’s factum. This chronology of the proceedings is set out in order to explain the rather extensive delay in dealing with the relatively straightforward issue of the sufficiency of the pleadings.

[ 6 ] The Defendants concede that an action in negligence lies as against the Mohawk Council, but argue that its employees, including police officers, are granted immunity under the principles, and by analogy, under certain statutory provisions relating to municipal employees. In the Defendants’ view, public officials are not liable for any alleged neglect or default in the performance, in good faith, of their duties. The Defendants argue that absent fraud, dishonesty or bad faith, public officials are not liable in relation to allegations of failing to carry out their duties. In addition, the Defendants plead that the statement of claim, which has been amended twice to date, is defective in form and substance as it fails to set out facts upon which the action is based, refers to various sources of evidence rather than simply setting out the facts in support of the claim, and contains irrelevant and prejudicial references to the various Defendants.

[ 7 ] The Plaintiff proposes to further amend the statement of claim in order to ensure compliance with the rules of drafting in relation to civil pleadings, however contests the Defendants’ position that the individually named Defendants cannot be held liable personally. In the Plaintiff’s view, the position of the Defendants can only be argued by analogy, there being no specific authority on point as it relates to the functioning of native band employees. The Plaintiff argues that the issue is best left to the trial judge on a fulsome and complete record and that there cannot be a determinative disposition presently given the triability of the issue.

[ 8 ] I have concluded that the claims against both the band employees and the police officers must be struck as disclosing, in the context of the present pleadings, no cause of action.

[ 9 ] The individual Defendants were at all material times employees of the Mohawk Council of Akwesasne. The creation and composition of the council are, for all intents and purposes, akin to municipal boards created under statute to administer the affairs of the territory. It has not been argued that there exist any compelling reasons to view the council as anything other than the statutorily created administrative element of the Band. Its election, regulation and powers, as provided by s. 73 to 85.1 of the Indian Act (RSC 1985, cI-5) are in all material respects, analogous to the roles of public office holders provided in the Ontario Municipal Act 2001 C25. The rationale behind the protection against personal liability which animates s. 448 of the Ontario Municipal Act is of equal application to holders of public office in the context of council members employed by a duly formed council under the Indian Act .

[ 10 ] Moreover, in the case of police officers, it is established that the powers and duties conferred upon them are designed to promote order, safety, health, morals and the general welfare of society, and that it is “not only impossible but inadvisable to attempt to frame a definition which will set definite limits to the powers and duties of police officers appointed to carry out the power of the state in relation to individuals who come within its jurisdiction and protection.” Schact v. R. [1972] 30 D.L.R. 13D461 (ONT CA), Pomagnudo v. York (Regional Municipality) Police [2001] O.J. no. 3537 (S.C.J.) .

[ 11 ] The pleadings as drafted fail completely to set out the manner in which the action or inaction of the Akwesasne Police Department resulted in damages suffered by the Plaintiff, nor do the pleadings identify a specific cause of action concerning the role of the police officers in the present case. Accordingly, the pleadings in the amended statement of claim, issued August 26 th , 2011, are struck as they relate to Grand Chief Michael Mitchell, Leona Delormier, Sheree Bonaparte and Jerry Swamp.

[ 12 ] Clearly, the Plaintiff is of the view that the conduct of those administering the land transfer functions on the Akwesasne Reserve has resulted in damages suffered by her. Ms. Pyke has only recently availed herself of the services of legal counsel. The exigencies of civil proceedings and the Plaintiff’s limited understanding of those became quite apparent during the various attendances on the motion. This action can presently proceed, in negligence, as it relates to the Mohawk Council of Akwesasne. The ruling herein is made without prejudice to the Plaintiff amending the claim, including a claim against individual defendants if she chooses to pursue an action based on fraud, bad faith, or dishonesty by those individuals.

[ 13 ] In the circumstances, and regardless of the Plaintiff’s decision as to which claims to pursue, the Court directs that a fresh statement of claim be issued in compliance with Rule 25 of the Rules of Civil Procedure, to be filed within 45 days unless an extension be brought in writing. The Defendant(s) shall have the usual time within which to file a defence as necessary.

[ 14 ] In addition, for reasons of efficiency and continuity, I will remain seized of any issues arising out of the pleadings in the matter.

[ 15 ] Unless the parties are able to agree otherwise, cost submissions in connection with the present motion are to be exchanged and filed no later than August 13 th , 2012.

Justice Robert Pelletier

Released: July 6, 2012

COURT FILE NO.: 11-313 DATE: 2012/07/05 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: BEVERLY JEAN PYKE - and - MOHAWK COUNCIL OF AKWESASNE, ANY AGENT OR PERSON ACTING UNDER THEIR INSTRUCTIONS OR ON THEIR BEHALF, GRAND CHIEF MICHAEL MITCHELL, LEONA DELORMIER, SHEREE BONAPARTE, AND JERRY SWAMP REASONS FOR JUDGMENT Justice Robert Pelletier

Released: July 6, 2012